This article is about the impact of the Truth and Reconciliation Calls to Action on Canada’s biodiversity goals, which had led to the possible creation of Indigenous Protected and Conserved Areas.

In 2010, biodiversity targets were set by the parties to the international Convention on Biological Diversity (CBD) during their 10th meeting in Nagoya, Aichi Province, Japan. These targets—commonly known as the “Aichi Biodiversity Targets” (ABT)—set out 20 objectives that the parties aim to achieve by 2020.

Subsequently, in 2015, Canada created four national goals and 19 targets based on the ABT, commonly known as the “2020 Biodiversity Goals and Targets for Canada”. Canada’s 2020 goals include: “Goal A: By 2020, Canada’s lands and waters are planned and managed using an ecosystems approach to support biodiversity conservation outcomes at local, regional and national scales”.1 Canada’s Target #1 is to have at least 17% of terrestrial areas and inland water, and 10% of marine and coastal areas of Canada conserved through networks of protected areas and other effective area-based measures by 2020.2

While attempting to achieve the 2020 Biodiversity Goals and Targets for Canada, the Government of Canada is also moving forward with measures to implement the Truth and Reconciliation Commission (TRC) Calls to Action and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the pursuit of reconciliation with Indigenous peoples. In order to ensure these goals do not conflict, Canada’s 2020 conservation targets are being pursued in collaboration with Indigenous organizations and with input from the members of an Indigenous Circle of Experts (ICE). In the spring of 2018, ICE published “We Rise Together: Achieving Pathway to Canada Target 1 through the creation of Indigenous Protected and Conserved Areas in the spirit and practice of reconciliation”.3 This report proposed the creation of Indigenous Protected and Conserved Areas (IPCAs) as a key mechanism for the recognition of Indigenous knowledge, legal traditions and cultural practices within Canadian conservation measures. Many worry that the aggressive pursuit of Canada’s 2020 targets without ensuring a central role for Indigenous peoples would have significant negative impacts on Indigenous rights and interests. Canada’s history of settler colonialism includes many shameful examples of Indigenous peoples being displaced from their ancestral territories through the creation of conservation areas. In light of this, Indigenous-led conservation practices and IPCAs are seen as crucial to the successful implementation of Canada’s conservation goals, including Target 1.4

The constitutional protection of Aboriginal and treaty rights also creates significant legal hurdles for any law or policy that might infringe these rights by displacing Indigenous peoples from their traditional territories or preventing them from exercising their Aboriginal or treaty rights within their own traditional territories.

The Crown’s duty to consult and accommodate

Canada’s legal framework also strongly favours IPCAs as a conservation tool in light of the constitutional protection of Aboriginal and treaty rights. Among other things, the federal, provincial, and territorial governments have a duty to consult and accommodate Indigenous peoples before taking any actions that might negatively impact their Aboriginal or treaty rights, including strategic land use planning decisions.5 The Crown’s duty to consult and accommodate Indigenous peoples has been found to apply to a wide variety of land use planning decisions, including decision-making with respect to the creation or modification of conservation areas.6 The constitutional protection of Aboriginal and treaty rights also creates significant legal hurdles for any law or policy that might infringe these rights by displacing Indigenous peoples from their traditional territories or preventing them from exercising their Aboriginal or treaty rights within their own traditional territories.7

Canadian current progress with respect to Target 1

As of December 2017, approximately 10.5% of Canada’s terrestrial area and inland waters were conserved, along with 7.7% of its marine territory. In 2018, the Government of Canada announced an investment of an additional $1.35 billion over 5 years to protect Canada’s Natural Legacy. The Natural Legacy is a federally funded and supported program that is established to promote conservation and protection activities. Its main goal is to improve Canada’s natural environment, protect it, and help Canada meet its 2020 Biodiversity goals and targets.8

The 2018 budget also set aside $500 million for the Nature Fund, which will be funding the management and establishment of Indigenous protected areas.9 Indigenous protected areas are areas of land managed by Indigenous nations. They are essentially designed to envision and support Indigenous landscapes. The Indigenous communities along with the Canadian government will have control of land management in the IPCAs.10

On October 11th 2018, the first Indigenous protected area designated in Canada was created under the 2018 Budget’s Nature Legacy.11 Located west of Yellowknife in the traditional Dehcho territory of the Northwest Territories, the Edéhzhíe Protected Area is the first of its kind and has been characterized as a crucial step towards reconciliation with Indigenous peoples.

Following this success, on January 24th 2019, the Government of Canada launched a four-year proposal entitled the Pathway to Canada Target 1 Challenge. This appears to be an attempt to influence provincial and territorial governments, Indigenous peoples, and private and non-profit sectors to collaborate in the pursuit of achieving Canada’s Target 1.12

Will the Government of Saskatchewan follow in the footsteps of the Northwest Territories and negotiate the creation of Indigenous Protected and Conserved Areas in our province? Stay tuned.

Summary A recent decision from the Office of the Saskatchewan Information and Privacy Commissioner (IPC) relating to the Quill Lakes Watershed Association has pointed out a critical gap in Saskatchewan’s freedom of information legislation in context to the association’s controversial diversion project.

Background to the Quill Lakes controversy

The Quill Lakes area of Saskatchewan contains three lakes: Big Quill Lake, Mud Lake and Little Quill Lake. High rainfall and surface runoff created by excess stormwater have contributed to the merging the lakes in some instances. The water level in the lakes has been observed to be rising and in October 2017 approximately 60,000 acres of land were flooded.

In 2017, the Quill Lakes Watershed Association (QLWA) proposed to construct a drainage diversion channel, called the Common Ground Drainage Diversion Project, which would redirect surface water from Kutawagan Lake and Pel Lake towards Last Mountain Lake. The proposed channel would have been about 25 km long, 1 m wide (bottom width) and would have had a side slope ratio of 3:1 (approximately 18.46˚ angle). The estimated amount of water diverted, according to QLWA, would have been 7,000,000 m3.

The Saskatchewan Minister of Environment concluded that no assessment would be required since the proposed project did not meet the criteria triggering an environmental impact assessment under Saskatchewan’s Environmental Assessment Act.

In response, in late 2017, the Saskatchewan Alliance for Water Sustainability (SAWS) and Saskatchewan Environmental Society (SES) petitioned Environment and Climate Change Canada to conduct a federal environmental assessment of the project’s potential damages.

In January 2018, in further response, Pasqua First Nation sought an application for judicial review against the decision to exempt the project from a provincial environmental assessment, arguing that they had not been adequately consulted prior to this decision. Pasqua also sought an injunction against the project.

QLWA ultimately dropped the project that same month, stating that it missed the deadline for construction in the spring. The QLWA stated it would continue to work on a solution and will comply with all necessary regulatory steps.

Saskatchewan’s freedom of information regime and its importance to environmental groups

The Freedom of Information and Protection of Privacy Act (FOIP) and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP)allow any person to access records in the possession or under the control of a government institution or local authority in Saskatchewan and it sets out privacy rules for how local authorities as well as government institutions may use, obtain and release personal information. Once a request has been submitted to the relevant institution, it has 30 days to provide an answer.

FOIP and LA FOIP are important for environmental groups as these statutes allow groups to request and obtain crucial information about projects and developments that could potentially damage ecosystems. They allow environmental groups to ensure that due diligence is performed by government agencies and companies in order to preserve Canadian ecosystems.

Request for information unsuccessful

On November 1, 2017, Jeff Olson, on behalf of SAWS, requested information about the Common Ground Drainage Diversion Project from QLWA pursuant to provincial freedom of information legislation. Part of the information he sought was the records of the project discussions held between QLWA and the Government of Saskatchewan Working Group at meetings between April 2017 and July 2017. Since Mr. Olson did not receive an answer from QLWA, he submitted a request for review to the IPC. On January 26, 2018, the IPC found that it did not have any jurisdiction to undertake a review of the QLWA as it did not qualify as a government institution or local authority under either FOIP or LA FOIP. The IPC recommended that the Minister in charge for the Saskatchewan Water Security Agency ask for a legislative amendment to include watershed associations as local authorities pursuant to LA FOIP.

If legislative amendments are made to include watershed associations as local authorities under LA FOIP as requested, environmental groups such as SAWS and SES might be able to request more transparency from QLWA with respect to future diversion proposals. This might reduce the potential for further controversy between environmental groups, First Nations, QLWA, and government agencies.

Furthermore, freedom of information requests might bring more transparency to why particular discretionary decisions are being made under environmental legislation. According to media reports, the communications obtained by Mr. Olson with respect to project discussions between QLWA and the Government of Saskatchewan Working Group depicted a “cozy” relationship between QLWA and the Minister of Environment and the Water Security Agency. They shed a different light on the approval of the proposed 25 km water diversion initially obtained and raised questions about the effectiveness of applicable environmental assessment legislation. In bringing light to such controversies, freedom of information legislation plays a crucial role.

In response to the recent The Hague Court of Appeal case legally binding the Netherlands government to a greenhouse gas reduction target, this article discusses why Canada’s current constitutional framework may make it difficult for a similar case to succeed in Canada.

Introduction

On October 10th, 2018, The Hague Court of Appeal upheld1 a lower court’s 2015 decision2 to hold the Dutch government accountable to their climate change commitments. The Dutch Constitution and international agreements respecting human rights and environmental law were fundamental to the decision. On behalf of 900 Dutch citizens, the Urgenda Foundation, a Dutch environmental group, filed a claim against the Dutch government’s inadequacies regarding climate change policy (Urgenda Foundation v The State of the Netherlands). As a result of their successful action, the Netherlands is now judicially bound to achieve a 25% reduction in greenhouse gas emissions by the end of 2020. This raises the question of how this ruling will affect climate change litigation in Canada and elsewhere in the world. It is important to compare both Canada and the Netherlands’ legal systems, international commitments, and substantive responses to the imminent effects of climate change.

Canada’s Policies & Relative Performance

The risks of unmitigated climate change are a global concern with specific challenges to Canada, the world’s ninth-largest3 GHG emitter. Canada’s younger population can expect to see changes such as wildlife displacement, species extinction, sea level rise, increased frequency and intensity of extreme weather events, and the loss of arctic summer sea ice within their lifetimes.

Canada has done very little to act on these risks despite being involved in international climate efforts since 1992. At the behest of the Copenhagen Accord of 2009, Canada committed4 to a reduction of greenhouse gas emissions to 17% below 2005 levels by 2020. Having had 26 years to consider and nine years to implement a plan to meet this commitment, Canada has only managed a 3.6% decline5 in emissions since 2005; much of which is likely attributable to the 2008 recession.

Under the 2015 United Nations Paris Agreement, Canada has committed to increase its effort to reduce greenhouse gas emissions to 30% below 2005 levels by 2030. With the Pan-Canadian Framework (PCF) set to ramp up in the coming months, 2016 data6 from Environment and Climate Change Canada (ECCC) reports an expected increase in GHG emissions of 1.4% over 2005 levels by 2030. While the federal government insists it will be able to achieve reductions of 28.5% by 2030, exactly how it plans to do so is still unclear and lacks certainty. Independent projections7 from the Pembina Institute and Energy Innovation suggest the gap between Canada’s Paris goals and projected 2030 emissions are likely to be much higher than the federal government’s expectations. Such uncertainty reflects the urgency that Canada must act upon in order to align itself with its commitments.

Prior to court enforcement, the Netherlands was expected to reach a 17% reduction in emissions relative to 1990 levels by 2020. Canada is expected to maintain a GHG emission output higher than 19908 levels until 2027; that is if the government can manage to keep its plan on track. ECCC’s best case projection9 for 2020 provides a mere 1.6% reduction compared to 2005 levels10 (a 19% increase over 1990 levels). While the Dutch courts found their government was not making sufficient progress on climate change, their inadequacies pale in comparison to those of Canada’s. Any argument for enhanced government action made in the Urgenda Foundation case could only be amplified by Canada’s failed efforts to date.

Pursuing environmental interests using the Constitution as it currently exists, Canadians may be able to rely on sections 7 and 15 of the existing Charter framework. Section 7 of the Charter guarantees Canadians the right to life, liberty, and security of the person. Section 15 affirms individual equality under the law. The widespread effects of climate change pose a risk to all Canadians, potentially frustrating section 7 of the Charter.

Constitutional Avenues & Limitations

Constitutional protection of environmental rights and human rights protections through the European Commission on Human Rights11 (ECHR) were primarily responsible for Urgenda’s success in its action against the Dutch government. Under the Dutch Constitution12, their government has a duty to “keep the country habitable and to protect and improve the environment”. Through its membership with the European Union, the Dutch government is also legally bound to ECHR Articles 2 and 8. These articles have been interpreted as giving individuals the right to life and the right to protection from seriously harmful environmental influences.

Without similar protections for Canadians expressly enumerated under their Constitution, nor protections granted through treaty, Canadians cannot rely on similar arguments in an effort to bind their governments to act. Though organizations are advocating13 to add a right to a healthy environment to the Canadian Charter of Rights and Freedoms (the Charter), there are tremendous challenges inherent in the task and the lack of tangible progress to date is missing the necessary immediacy. Such additions to the Charter would be subject to the Constitution’s 7-50 amending formula, which requires seven out of ten provinces representing at least 50 percent of the population of Canada to support the proposed change. That said, rallying political will to improve environmental law is instead much more direct to the point and would preclude the requirement of amending the Charter altogether.

Pursuing environmental interests using the Constitution as it currently exists, Canadians may be able to rely on sections 7 and 15 of the existing Charter framework. Section 7 of the Charter guarantees Canadians the right to life, liberty, and security of the person. Section 15 affirms individual equality under the law. The widespread effects of climate change pose a risk to all Canadians, potentially frustrating section 7 of the Charter. Further, the disproportionate impacts that climate change may inflict upon certain socioeconomic classes and Indigenous14 peoples could pose a compelling Section 15 infringement argument. Lacking any such relatable precedent, however, it would likely require a very robust legal argument and flexible court to adopt a favourable ruling.

Opportunities & Judicial Barriers

A claim15 awaiting certification from the Québec Superior Court has recently been filed by ENvironnementJEUnesse (ENJEU), an environmental education organization directed on behalf of Québec youth. This prospective class-action, representing every Québec citizen under the age of 35, seeks a declaration that the federal government has infringed on their rights under sections 7 and 15 of the Charter and sections 1, 10, and 46.1 of the Québec Charter. Section 46.1 of Québec’s Charter, in particular, recognizes a right to live in a healthful environment. This raises particularly interesting questions regarding jurisdiction and whether or not a federal government can be held accountable for prevailing environmental conditions within provincial boundaries. Though it is not yet apparent if the claim will find its way before a court, it will be interesting to see whether it sparks a surge in Canadian climate advocacy litigation.

In order for ENJEU to bring their claim before a court, they must pass the test for public interest standing. In order to meet this threshold, the group must demonstrate their direct or genuine interest in the matter and show that there is no reasonable alternative for the issues to be brought before the court. Meeting these requirements have previously proven difficult for organizations pursuing climate related litigation. In a 2015 British Columbia Supreme Court decision16, Voters Taking Action on Climate Change failed to demonstrate their public interest standing in order to challenge BC coal policy decisions. While that meant the organization could not present their argument in court, the decision left the door open17 to the possibility of having climate change concerns heard in the future. Several18 rulings from various Canadian courts demonstrated the court’s willingness to accept that, as a matter of judicial notice, the implications of climate change do not require evidential proof. One19 Federal Court of Appeal judgment goes as far as citing climate change as a “real evil and a reasonable apprehension of harm.”

In order to see action on such issues judicially enforced, litigants must be persistent and creative. The ever-drawn out and yet-undetermined Juliana case20 from the United States – originally brought forward in 2015 by 21 youth plaintiffs – has ping-ponged21 through the US judicial system due to the federal government’s incessant efforts to avoid trial. Juliana’s claim lies within the Public Trust Doctrine, which holds that certain common resources must be held in trust for the benefit of current and future American generations. Juliana hopes to have the Earth’s atmosphere recognized by the court as such a resource going forward.

Just as with Juliana’s likely conclusion, many prior claims have been thrown out based on the Political Questions Doctrine22. This doctrine precludes the progression of cases through the courts based on their suitability for resolution by the political branches of government. While the argument and basis of claim for Juliana in their case is much the same as those raised by Urgenda before the Dutch courts and now ENJEU’s in Quebec, a typically conservative US Supreme Court is unlikely to adopt Juliana’s progressive requests to enforce government action.

Canadian climate litigants have experienced similar frustrations due to a court’s general preference for politics to resolve seemingly non-justiciable issues, which may inevitably become the fate of ENJEU’s application. In the 2007 Friends of the Earth v Canada23 case, the Court determined that while the failure to create a Climate Change Plan altogether may be justiciable, it could not bind the government to implement a more aggressive climate plan. Because the federal government’s legislative answer to the 1997 Kyoto Protocol was designed to be subject only to its own enforcement, the issue was non-justiciable; any effort to increase government accountability would have to be political.

Where do we go from here?

Politically speaking, the news is far from good. The federal government has recently committed to the PCF, though analysis of which suggests considerable deficiencies throughout. A federal carbon price backstop24 – albeit moderate and highly insufficient25 – has been enforced on provinces who had failed to implement sufficient strategies by January 1, 2019. As political opponents to the plan preach disingenuous, fear-mongering rhetoric26 without providing any sort of constructive alternative, a possible change in government resulting from the approaching federal election threatens to compromise what little work has been done. While the current federal government continues to subsidize and invest in oil and gas ventures as a result of powerful fossil fuel lobbies and deep-seated roots, an even deeper hole is dug that may prove inescapable when the transition to a clean economy is no longer optional, but absolutely mandatory.

From the legal perspective, absent the express constitutional entrenchment of rights to a sustainable or healthy environment, hopeful litigants cannot rely on the reasoning successfully adopted in the Urgenda Foundation case. Instead, it appears an innovative and compelling interpretation of sections 7 and 15 of the Charter would provide Canadians with their only hope at constitutional recourse, at least for the time being. Although there are obvious hurdles to pursuing climate change litigation in Canada, there are certainly options available for those with the time, resources, and tenacity to do so.

The issue of justiciability is not likely to be one that will fade anytime soon. There is a distinct separation of powers that must be maintained between the courts and Canada’s democratic institutions. Without legislation in force, the judiciary has little to scrutinize; policy criticism is out of the court’s hands. As a result, despite the barrier of the current political climate, a groundswell of support for political action is currently Canada’s best and fastest hope at seeing any meaningful action on climate change. Dependent on perspective27, such support may or may not be within Canada’s near future.

Please NoteThis is a summary of the Government of Saskatchewan’s reply for educational purposes only and is not an endorsement of their arguments or how they have interpreted case law. SKAEL has also published summaries of the Government of Saskatchewan's factum HERE and Federal Government's factum HERE.

Preliminary FAQ

This reference case involves the Government of Saskatchewan (GOVSK) asking the Saskatchewan Court of Appeal (SKCA) to determine whether the Federal Government’s (FEDGOV’s) carbon pricing legislation, the Greenhouse Gas Pollution Pricing Act (GGPPA), is constitutional. The hearing is set for February 13-14, 2019. Please see the following information below to have a better understanding of the whole issue.

What is a reference case?

What the GOVSK is doing here is a “reference case” or “reference question”. It is not a lawsuit that involves two litigating parties. References questions give governments the ability to ask courts important legal questions. The court’s determinations are not legally binding like obtaining a judgment or order in traditional litigation, but governments typically treat them with the same weight and will follow the court’s decisions.1 Once the court reaches a decision, a party may appeal to the Supreme Court of Canada.

What is a factum and a reply?

A factum is counsel’s written arguments filed before the court hears the lawyers argue their case. Each level of court and jurisdiction usually has a specific set of rules that lawyers must follow when writing and submitting their factum. Some parties may have the chance to file a reply factum to supplement the record in response to one of the other parties’ factum. In this case, the Government of Saskatchewan was able to file a reply factum in response to the Federal Government.

How does the court determine whether legislation is constitutional? (Recommended read)

Knowing a bit about Constitutional Law is crucial for understanding the factum. A main tenet of this area of law is that each level of government has areas of powers designated to them called “heads of power”, which the Constitution Act, 1867 outlines in section 91 and 92.

In essence, sections 91 and 92 define the boundaries within which governments can act. Legislation passed by either level of government may be unconstitutional (otherwise referred to as “ultra vires”) if that law does not fall under the respective government’s head of power. In other words, the government has acted without legal authority. These limitations prevent the provincial government from legislating over matters that the federal government has responsibility over and vice versa.

For example, the federal government is responsible for enacting laws regarding the military, while provincial governments legislate with respect to municipalities. The provincial government cannot pass laws regarding military procurements, while the federal government cannot decide on the amalgamation of cities within a province.

A doctrine for determining whether legislation is unconstitutional is called the “pith and substance” analysis. This essentially involves finding the “essence” or “core” of the legislation at issue and then figuring out whether the government has authority from their respective heads of power to enact it. In examining the “essence” of a piece of legislation, the court will typically look at

The purpose of the law;

The legal effect of the law (what impact(s) would the law have if it functions as intended?); and

The practical effect of the law (what impact(s) would the law actually have?).

The Constitution does not designate some matters exclusively to either level of government, like the environment. What this means is that either the province or federal government can pass legislation regarding the environment, but they must still do so using one of their existing heads of power. This can make legislating confusing and messy, such as the issue at hand.

The GGPPA applies to those provinces who did not have their own carbon pricing framework that meets the federal standards in place by 2018. The basic carbon pricing plan for Saskatchewan as outlined in the GGPPA consists of two main parts:

Part I: A price on fossil fuels paid by registered producers and distributors starting in April 20192; and

Part II: A separate output-based pricing system for facilities related to electricity generation and natural gas transmission pipelines that emit over 50 kt of CO2 equivalent per year. Smaller facilities that emit 10 kt tonnes or more of CO2 equivalent per year can voluntarily opt-in to the system over time.3

The carbon pricing plan ensures that any revenue raised will return to the province of origin to provide relief to vulnerable sectors/individuals and families and as support for other greenhouse gas emission reduction strategies in the province.

The GGPPA is the piece of legislation that the GOVSK is challenging as unconstitutional.

Summary of the Government of Saskatchewan's Reply

The SKGOV sets out to prove the following positions:

Regardless of whether the GGPPA is a tax or pricing control on certain commodities, it cannot be justified under Peace, Order and Good Government (POGG)4 powers, s. 91. POGG displaces provincial powers altogether, which is incompatible with (a) Canada’s position that the carbon pricing is joint federal and provincial jurisdiction and (b) the intent/structure of the GGPPA;

Even if federal and provincial governments could share the jurisdiction under cooperative federalism, the GGPPA is not co-operative — it is “coercive federalism”;

If the GGPPA imposes pricing controls, it is unconstitutional because regulating prices of commodities is within the province’s exclusive jurisdiction under Property and Civil Rights as set out by s. 92(13) of the Constitution Act, 1867.

In essence, the SKGOV argues two main points:

The GGPPA cannot be legislated under POGG, as the federal government suggests; and

The GGPPA is unconstitutional for attempting to control commodities in violation of the province’s jurisdiction under s. 92(13).

1) The GGPPA is Fundamentally Inconsistent with the POGG Power

The SKGOV argues that the GGPPA’s purpose and structure goes against the requirements and character of the POGG power and cannot therefore be justified under this head of power.

Any consideration of the POGG power must take into account the actual words of s. 91 of the Constitution Act, 1867, which states that the federal government can make laws in relation to matters that are not already assigned to the provinces (para 8):

Parliament is authorized by the POGG power only to make laws “in relation to Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”

The SKGOV argues that the FEDGOV cannot therefore use POGG to legislate on matters which they acknowledge fall under provincial jurisdiction, absent an emergency (para 8). The SKGOV points out that the GGPPA essentially acknowledges that carbon pricing falls under provincial jurisdiction by deferring to a province’s own pricing regimes (if one exists).

In addition, the fact that the GGPPA applies in some provinces and not others undermines the FEDGOV’s position that the matter is of national concern (para 8). If the GGPPA was addressing a matter of national concern, it would apply nationally in all provinces, not just some (para 8).

Proper POGG Test

SKGOV submits that the GGPPA fails to meet many essential elements of POGG and that the FEDGOV cannot enact the GGPPA using this power, specifically because of the following issues:

The matter at issue (GHG emissions) does not meet the POGG test of singleness, distinctiveness, and indivisibility.

The GGPPA does not legislate in a way that is sufficiently distinguishable from provincial matters.

The scale of the GGPPA’s impact is irreconcilable with the fundamental division of powers under the Constitution.

The GGPPA does not meet the provincial inability test and cannot justify displacing a province’s authority.

SKGOV argues that the courts must “exercise great care” to avoid displacing provincial powers in light of federal and provincial federalism (para 13). The SKGOV submits that Canada is essentially seeking to permanently remove matters from provincial jurisdiction and “such an innovation is to be met with skepticism” and approached with caution (para 14). The only way to change the division of powers is not through the courts, but constitutional amendment (para 15). The SKGOV argues that national concern, short of an emergency, should never take over a province’s jurisdiction (para 16). The idea that matters originally under provincial jurisdiction can “somehow evolve or change over time to become matters of national concern” and therefore now fall under federal jurisdiction “flies in the face of the written terms of the Constitution” (para 16).

Below, the SKGOV explains how the FEDGOV fails to justify the GGPPA under POGG.

(a) No Singleness, Distinctiveness, and Indivisibility

The SKGOV agrees with Canada that the “environment”, “pollution generally”, or “air pollution at large” are not distinct matters (para 18). The SKGOV argues that GHG emissions, however, are simply a subset of “pollution”, and are also not “sufficiently distinct” (para 19). The SKGOV states that a matter is not distinct simply because it can be specifically listed as a type of chemical in the regulations (para 19). If that was sufficient, the FEDGOV would have an unlimited ability to take over jurisdictional space simply by adding endlessly to the list of regulated chemicals (para 19).

The SKGOV suggests the Crown Zellerbach Canada Ltd. case, relied heavily on by Canada, does not apply. Crown Zellerbach found marine pollution properly distinct due to the coastal waters being “geographically interprovincial and international in nature” and was therefore a matter the federal government could legislate under POGG (para 20). The GGPPA on the other hand, the SKGOV argues, does not try to prevent inter-provincial and international pollution – rather, it attempts to disincentivize the consumption of certain fuels (para 20). The GGPPA does not limit emissions or require permission to emit; instead, it “requires interference with a retail economy in order to have an indirect effect” (para 26). What the FEDGOV is asking would go beyond the scope set by Crown Zellerbach (para 25).

The SKGOV also argues that the GGPPA does not meet the “singleness” requirement because its application is uneven across the country and based on subjective criteria (para 24):

The requirement of singleness is further belied by the patch-work, politically motivated and uneven application of the backstop system under the GGPPA. It cannot be that a matter of singleness can be applied with such wide variation in different parts of the country, where the only test of uniformity is one of a subjective assessment, by the federal government, of whether particular provinces have sufficiently “stringent” pricing mechanisms.

(b) No distinction from provincial matters

The SKGOV argues that POGG “represents exclusive jurisdiction of Parliament”, and must be used only for matters that can be distinguished from provincial matters (para 27). However, they suggest that POGG powers actually conflict with the intent and structure of the GGPPA (para 27-8). The GGPPA assumes provinces have the power to legislate GHG emissions, but POGG cannot be used for matters over which there is concurrent provincial powers (para 28).

(c) Irreconcilable scale of impact

The SKGOV also submits that the GGPPA is overreaching. The GGPPA does not recognize other mechanisms of emission reductions, its stated goal – it insists that pricing is the necessary mechanism (para 31). This is irreconcilable with a province’s legislative authority.

(d) No provincial inability

The SKGOV submits that in order to “disrupt provincial powers” with POGG, there must be a “genuine demonstration of measurable harm to Saskatchewan’s Canadian neighbours that justifies extra-ordinary federal intrusion” (para 35).

The SKGOV agrees that where one province cannot control the interprovincial aspects of another province’s actions to its own detriment, the matter may raise the issue of provincial inability (para 34). The SKGOV’s position is that Saskatchewan has not created any interprovincial problem in this case and the GGPPA therefore does not pass the provincial inability test (para 35). The SKGOV references statistical data to suggest that the federal government’s expected reduction of emissions in Saskatchewan due to the GGPPA will be minimal (para 37). Particularly in light of Canada’s allegedly small role in global emissions, the SKGOV also argues that the emissions from Saskatchewan’s has the same effect as everyone else’s emissions. One cannot say that emissions from Saskatchewan specifically has caused climate change problems in another province.

The Exclusive Nature of POGG

The SKGOV agrees that environmental protection is not exclusively within the jurisdiction of either the provinces or federal governments, which is why the POGG power must be used cautiously – it conveys exclusive jurisdiction (para 40). The environment is of such importance that both governments must be able to use their respective heads of power to regulate this area (para 41).

Allowing matters to fall under POGG power must go hand in hand with the conclusion that “only Parliament can legislate on that matter” (para 42). Concluding that GHGs are a matter within federal jurisdiction under POGG is equal to adding “‘greenhouse gas emissions’ to the enumerated powers set out in section 91” (para 42).

The GGPPA, on the other hand, allows for some provincial control over GHGs (in which case, the GGPPA would not apply) (para 43). The SKGOV argues this is incompatible with the conclusion that the federal government has the exclusive legislative authority to impose a carbon pricing system as authorized by POGG (para 44). Allowing the federal government to enact the GGPPA under POGG would then result in any provincial legislation in relation to GHGs to become unconstitutional, such as BC’s current pricing regime (para 42 and 46).

Even if the backstop was construed as “co-operative federalism” (which the SKGOV refutes), co-operative federalism cannot allow a province to legislate on matters within exclusive jurisdiction of the federal government (para 45). The GGPPA and POGG are therefore incompatible.

Co-operative Federalism Cannot “Cure” the GGPPA

The SKGOV’s position is that co-operative federalism cannot make unconstitutional legislation constitutional (para 48). The SKGOV also acknowledges that the courts respect creative and unconventional solutions between legislatures working in their respective jurisdictions: “This is the requirement of federalism” (para 48).

The SKGOV argues that imposing a pricing system on a province with differing policy objectives, however, is not co-operative federalism (para 49). It is only when jurisdictions have incompatible policy objectives that enforcing the proper division of powers become necessary — the GGPPA, in the SKGOV’s mind, is more so “coercive federalism” (para 50).

Irrelevant Bases for POGG National Concern Power

The SKGOV argues that the FEDGOV has failed to sufficiently address whether the GGPPA has met the POGG test. They suggest that the FEDGOV has conflated the other POGG power – the emergency branch – with the national concern branch (para 57). The FEDGOV discussed climate change as a crisis of vital importance, but the SKGOV suggests that these concerns are not relevant to determining whether the FEDGOV should have exclusive jurisdiction over the matter at subject (para 57).

In any case, the SKGOV argues that the FEDGOV doesn’t even see emissions reduction as an emergency that needs to be addressed immediately. If they did, they might have used their criminal law power to outlaw certain types or levels of emissions altogether (para 55). The SKGOV also argues that international commitments do not change the division of powers and cannot be a basis for undermining the Constitution (para 62).

2) The GGPPA Relates to a Provincial Head of Power

The SKGOV then goes into characterizing the pith and substance of the GGPPA. The SKGOV suggests that matters at issue should first be categorized under existing heads of powers and POGG or other residuary powers should only be relied on as an “exceptional step” (para 63). Matters should also not be too general (such as the “environment” or “inflation”) (para 64).

What then is the pith and substance of the legislation at issue? The SKGOV maintains its position that the GGPPA is a tax, but even if it isn’t, they argue that the GGPPA legislates the price of commodities within a province, which is a matter of property and civil rights (para 65).

The SKGOV suggests that finding the pith and substance does not come from looking at “desired indirect effects”, such as keeping global temperatures from rising or altering consumption behaviours (para 67). As such, the SKGOV argues that the GGPPA may be motivated by environmental concerns, but it is inherently a “fiscal act” (para 71). More likely, the GGPPA is altering the demand of certain fuels through imposing taxes/charges — in other words, the pith and substance of the GGPPA is to increase the cost of certain fuels in a province through pricing mechanisms (para 68).

The SKGOV draws parallels to the Anti-Inflation Act case in which the court found that the actual characterization of the legislation at issue to be the controlling of margins, prices, and dividends in regard to provincial private sector (para 69). As a result, the court found the legislation unconstitutional, as the legislation targeted the regulation of “local trade” – in essence, the property and civil rights, a matter of provincial jurisdiction (para 69).

SKAEL’s Initial Thoughts

The GOVSK suggests that the federal government doesn’t believe GHG emissions is a national concern – if they did, they would have tried to ban or punish GHG emissions altogether. Yet, the GOVSK has been advocating for more provincial autonomy and less coercive methods. How would they reconcile these two positions?

Please NoteThis is a summary of the federal government's factum for educational purposes only and is not an endorsement of their arguments or how they have interpreted case law. We have also posted a summary on the Government of Saskatchewan's factum HERE.

Preliminary FAQ

This reference case involves the Government of Saskatchewan (GOVSK) asking the Saskatchewan Court of Appeal (SKCA) to determine whether the Federal Government’s (FEDGOV’s) carbon pricing legislation, the Greenhouse Gas Pollution Pricing Act (GGPPA), is constitutional. The hearing is set for February 13-14, 2019. Please see the following information below to have a better understanding of the whole issue.

How does the court determine whether legislation is constitutional? (Recommended read)

Knowing a bit about Constitutional Law is crucial for understanding the factum. A main tenet of this area of law is that each level of government has areas of powers designated to them called “heads of power”, which the Constitution Act, 1867 outlines in section 91 and 92.

In essence, sections 91 and 92 define the boundaries within which governments can act. Legislation passed by either level of government may be unconstitutional (otherwise referred to as “ultra vires”) if that law does not fall under the respective government’s head of power. In other words, the government has acted without legal authority. These limitations prevent the provincial government from legislating over matters that the federal government has responsibility over and vice versa.

For example, the federal government is responsible for enacting laws regarding the military, while provincial governments legislate with respect to municipalities. The provincial government cannot pass laws regarding military procurements, while the federal government cannot decide on the amalgamation of cities within a province.

A doctrine for determining whether legislation is unconstitutional is called the “pith and substance” analysis. This essentially involves finding the “essence” or “core” of the legislation at issue and then figuring out whether the government has authority from their respective heads of power to enact it. In examining the “essence” of a piece of legislation, the court will typically look at

The purpose of the law;

The legal effect of the law (what impact(s) would the law have if it functions as intended?); and

The practical effect of the law (what impact(s) would the law actually have?).

The Constitution does not designate some matters exclusively to either level of government, like the environment. What this means is that either the province or federal government can pass legislation regarding the environment, but they must still do so using one of their existing heads of power. This can make legislating confusing and messy, such as the issue at hand.

What is a reference case?

What the GOVSK is doing here is a “reference case” or “reference question”. It is not a lawsuit that involves two litigating parties. References questions give governments the ability to ask courts important legal questions. The court’s determinations are not legally binding like obtaining a judgment or order in traditional litigation, but governments typically treat them with the same weight and will follow the court’s decisions.1 Once the court reaches a decision, a party may appeal to the Supreme Court of Canada.

What is a factum?

A factum is counsel’s written arguments filed before the court hears the lawyers argue their case. Each level of court and jurisdiction usually has a specific set of rules that lawyers must follow when writing and submitting their factum.

The GGPPA applies to those provinces who did not have their own carbon pricing framework that meets the federal standards in place by 2018. The basic carbon pricing plan for Saskatchewan as outlined in the GGPPA consists of two main parts:

Part I: A price on fossil fuels paid by registered producers and distributors starting in April 20192; and

Part II: A separate output-based pricing system for facilities related to electricity generation and natural gas transmission pipelines that emit over 50 kt of CO2 equivalent per year. Smaller facilities that emit 10 kt tonnes or more of CO2 equivalent per year can voluntarily opt-in to the system over time.3

The carbon pricing plan ensures that any revenue raised will return to the province of origin to provide relief to vulnerable sectors/individuals and families and as support for other greenhouse gas emission reduction strategies in the province.

The GGPPA is the piece of legislation that the GOVSK is challenging as unconstitutional.

Summary of the Federal Government's Factum

The FEDGOV sets out to address the following issues:

Greenhouse gas (GHG) emissions are a matter of national concern – Parliament has legislative competence to enact the GGPPA under the peace, order, and good government power.

Canada’s approach to implementing a pan-Canadian price on carbon pollution respects all principles of federalism.

The scale of impact on provincial jurisdiction is reconcilable with the fundamental distribution of legislative power under the Constitution.

The main focus of the FEDGOV’s argument is that the GGPPA is constitutional because it falls under the federal powers of national concern. A substantial amount of the FEDGOV’s factum is devoted to explaining the dangers of climate change and the national and international agreements that support the science of climate change. These agreements include the United Nations Framework Convention on Climate Change, the Paris Agreement, and the Vancouver Declaration on Clean Growth and Climate. The FEDGOV included the scientific background and agreement history to demonstrate the importance of fighting climate change in support of their position that GHG emissions and climate change are issues of national concern.

1. The GGPPA meets the criteria for POGG: national concern

After completing the background information on climate change, the FEDGOV explains the criteria for national concern doctrine under the federal peace order, and good government power (POGG). Initially set out in Crown Zellerbach Canada Ltd., the matter at issue must meet the following criteria:

Be a new matter that was not considered by the Constitution or be a local matter that has since become one of national concern.

Have a “singleness, distinctiveness and indivisibility” that distinguishes it from provincial jurisdiction. It also must have a scale of impact that would be beyond the scope of provincial jurisdiction.

Pass the provincial inability test: if a province was to fail to act on the issue it would affect extra-provincial interests.

If the court finds that the GGPPA meets all of these criteria, then it would be constitutional legislation that could be enacted under the national concern doctrine.

GGPPA’s Purpose and Effect

Before the FEDGOV considers the national concern criteria, they analyze the GGPPA’s purpose and effect to help prove that it does meet the POGG test.

The FEDGOV claims that when you look at the structure of the statute, the legislative history and the context of its enactment, the dominant purpose of the GGPPA is to implement a minimum GHG emissions price throughout Canada to incentivize the behavioural changes necessary to reduce GHG emissions.

Specifically, the FEDGOV points to the following aspects of the GGPPA to demonstrate the legislation’s core purpose:

The preamble of the GGPPA aligns with the dominant purpose: in the preamble, the GGPPA acknowledges that some provinces have already implemented or are developing carbon pricing schemes, “but that the absence of GHG emissions pricing systems in some provinces and the lack of stringency in GHG emissions pricing systems in others could contribute to significant deleterious effects on the environment” (para 78).

The legal effect of the GGPPA aligns with the dominant purpose: the GGPPA ensures GHG emissions pricing applies broadly across Canada with increasing stringency to incentivize behavioural changes that reduce GHG emissions.

The structure of the GGPPA aligns with the dominant purpose: Parts 1 and 2 of the GGPPA create a complete and complementary regulatory system for pricing GHG emissions in a way that aims to minimize negative competitive impacts on emissions-intensive, trade-exposed industries.

The practical effect of the GGPPA aligns with the dominant purpose: carbon pricing is the most efficient way to reduce emissions, a position well-supported by the international community and the Pan-Canadian Framework working group.

Responding to the SKGOV’s argument, the FEDGOV’s submit that the GGPPA is not a colourable attempt to regulate industry or intrude into provincial jurisdiction. The GGPPA does not tell industry how to reduce emissions or even that they must reduce at all. It instead implements a “polluter pay” principle4 that is already entrenched in Canadian law. The means by which industrial and other facilities achieve GHG emissions reductions remains entirely open. It would not remain open if the GGPPA was the industrial regulation that Saskatchewan characterizes it as.

i) The GGPPA is a matter of national concern

After determining the purpose of the GGPPA, the next step in the national concern test is to characterize the law as a matter of vital national concern. In Friends of the Oldman River Society, the Supreme Court declared that “the protection of the environment has become one of the major challenges of our time”. The FEDGOV characterizes GHG emissions as national concern because:

Given their role in causing climate change, GHG emissions are a national and international concern that cannot be contained within geographic boundaries.

Existing and anticipated impacts of climate change include changes in extreme weather events, degradation of soil and water resources, increased frequency and severity of heat waves, expansion of the ranges of vector-borne diseases, drought, desertification, food shortages, and a resulting increase in global unrest. GHG emissions create a risk of harm to both human health and the environment upon which life depends.

The next part of the national concern test is to prove that GHG emissions are of a single, distinct, and indivisible matter. The FEDGOV does not claim that all air pollution is a matter of national concern but that GHG emissions as “discrete, distinct, and indivisible form of pollution – are a matter of national concern”. GHG’s are characterised as single, distinct and indivisible because:

GHGs are a precisely defined type of environmental pollutant, based on a specific set of scientific characteristics.

GHG emissions are a measurable and persistent environmental pollutant, with specific characteristics.

Unlike in Hydro-Quebecwhere a broader definition of “toxic substances” was found to be too limiting, GHG emissions are precisely defined and are limited to chemicals that affect all of Canada.

The third step of the national concern test is to see if failure by any one provinces to implement carbon pricing would affect other provinces.

The effects of climate change caused by the release of GHG’s affect the entire world including other provinces. The FEDGOV quotes paragraph 16 from Canada Metal Co.: “it is a notorious fact that air is not impounded by provincial boundaries”. Not only do GHG’s not stay in a specific geographic location but the effects of climate change are found everywhere on the globe, even if a specific jurisdiction isn’t contributing to the problem.

By way of example, the FEDGOV discusses the relationship between British Columbia and Saskatchewan. Despite British Columbia taking steps to mitigate GHG emissions over the last ten years, BC feels the effects of Saskatchewan increasing its GHG emissions through events BC has experienced such as increased forest fires and sea level rise.

The global nature of climate change also means that Canadian emissions affect other countries. Following Canada’s obligations to international accords like the Paris Agreement will affect Canada’s relationships on the world stage.

2. Impact on provincial jurisdiction is reconcilable with the distribution of power under the Constitution

The final step of the FEDGOV’s analysis of the national concern branch is that the scale of impact on provincial jurisdiction is reconcilable with the fundamental distribution of legislative power under the Constitution. The Supreme Court has recognized that the environment is not exclusively assigned to either level of government. The FEDGOV argues that giving them the jurisdiction to regulate GHG emissions through the GGPPA does not impair the provincial legislatures’ power to regulate local matters and industries. The modern approach to federalism recognizes that areas of overlapping powers are unavoidable.

The court must take into account the principle of cooperative federalism, which favours, whenever possible, concurrent legislation operating by governments at all levels. The FEDGOV states that recognizing GHG emissions as a matter of national concern will not alter the balance of legislative power under the Constitution because the provinces have several heads of power that allow them to legislate in respect of GHG emissions, and Parliament has the criminal law power. Federal jurisdiction to legislate as a matter of national concern does not shift the balance of legislative power, but rather provides Parliament with a flexible tool, reflecting the magnitude of the climate change issue. The GGPPA encourages the provinces to come up with their own solutions, but responds to provincial inaction if needed.

3. Alternative arguments5: If the GGPPA is a tax, the GGPPA is constitutional

If the court finds that Part 1 of the GGPPA is in fact a tax, as the GOVSK has argued6, then under taxation powers found in s. 91.3 of the Constitution, the GGPPA is constitutional.

The GOVSK does not refute the federal taxation power as a constitutional way to enact the GGPPA but takes issue with the discretion delegated by Parliament to the Governor in Council. Under the GGPPA the Governor in Council would determine the jurisdiction in which part 1 and 2 of the GGPPA would operate.

The GOVSK argues that only Parliament can enact a tax and it would be placing too much power in the Governor in Council if it was given taxation powers. The GOVSK argues that the ability of Governor in council to list provinces in Part 1 of Schedule 1 of the GGPPA amounts to taxation without representation. The GOVSK’s argument is that only elected officials, and not appointed officials like the Governor in council can set taxes. The FEDGOV claims that because the GGPPA was enabled by legislature and defined the scope of Governor in Council’s regulatory power it meets the requirements and the GOVSK’s “no taxation without representation” argument is invalid.

The FEDGOV counters that the delegation is legally enacted because the GGPPA originated in the house of commons and the SCC found in Ontario English Catholic Teachers Assn. that delegation of a tax is constitutional if express and unambiguous language is used in the delegation.

The fuel charge is imposed by the GGPPA and it establishes who is subject to the charge in the jurisdictions where it operates. The charge is computed under the GGPPA for time periods that are established in the legislation. The amount of the charge is set by the GGPPA and the Governor in Council’s authority to determine the rate is expressly delegated.

SKAEL’s Initial Questions/Thoughts

How will the FEDGOV deal with the argument that the GGPPA impacts some provinces (like Saskatchewan) more than others? Does this align with the principles of federalism, such as provincial autonomy?

The FEDGOV relies on case law to mark the boundaries of sufficiently narrow and overly broad matters over which they can be granted the jurisdiction to legislate under POGG – specifically, “marine pollution” (as being sufficiently distinct) and “toxic substances” (as being too broad). The FEDGOV suggested that GHG emissions are “like marine pollution”, and, scientifically, GHG emissions are distinct. Is being able to scientifically categorize a matter enough to meet the POGG: national concern criteria? Are GHG emissions really closer to “marine pollution” than “toxic substances”, as the FEDGOV suggests?

This opinion piece was written by one of our PBSC students on the recent court case Groupe Maison Candiac Inc. v. Canada (Attorney General), 2018 FC 643,which dealt with the federal government’s ability to limit development on private provincial land under the Species at Risk Act.

Introduction

On June 22, 2018, the Federal Court of Canada released its ruling in Groupe Maison Candiac Inc. v. Canada (Attorney General).1The Honourable Mr. Justice Leblanc dismissed an application for judicial review2 sought by Groupe Maison Candiac (“Groupe Candiac”) challenging the federal government’s power to limit development on private land under the Species At Risk Act3 [SARA]4.More specifically,Justice Leblanc ruled that the federal government’s ability to issue an emergency order under section 80 of SARA on provincial land does not violate the division of powers in the Constitution Act of 1867 and does not amount to an unlawful form of expropriation without compensation.

Species At Risk Act

The purposes of SARA are to prevent “species from being extirpated or becoming extinct, to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity and to manage species of special concern to prevent them from becoming endangered or threatened”.5 Section 80(2) of SARA provides that an emergency order can be issued to protect any species in Schedule 1 of SARA that “faces imminent threats to its survival or recovery”.6 On July 8, 2016, the Governor in Council, on the recommendation of the Minister of Environment and Climate Change, Catherine McKenna, issued an emergency order for the Western Chorus Frog.7 It created 1.85 km2 of protected area in the South Shore of Montreal. This resulted in an immediate prohibition of any development in this area. The Minister also announced that the owners of properties located within the protected area were not to be compensated.

The Western Chorus Frog

The Western Chorus Frog (Pseudacris triseriata) is a small smooth-skinned tree frog that varies in colours from green-grey to brown.8 It is easily distinguished from most other tree frogs by three dark stripes on its back.9 The adult size does not exceed four centimeters. This small amphibian inhabits different types of wooded and wetland areas such as marshes, swamps, and woodland ponds.10

According to the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”), the Western Chorus Frog’s population has declined in Quebec, Ontario and northern New York state.11 The decrease in population has been associated with habitat loss and fragmentation.12 The largest population of the species is found in the South Shore of Montreal, which led to this case involving a housing development proposed by Groupe Candiac.

Groupe Candiac Asked the Court to Cancel the Emergency Protection Order

The emergency order prevented completion of a housing development that was already underway and Groupe Candiacmaintained that it consequently lost approximately 20 million dollars.13 Groupe Candiac asked the Court to cancel the emergency order pursuant to section 18.1 of the Federal Court Act as it believed the order to be invalid.14 Groupe Candiacclaimed it was adopted for the purpose of preventing themfrom building on the land, which they argued was beyond the scope of the federal government’s constitutional powers. Groupe Candiac also maintained that the order constituted an illegal form of expropriation without compensation.15

What does this mean for Saskatchewan?

Although SARA was enacted in 2002, there has only been one other successful emergency order issued prior to this case.16 In November 2013, the first emergency order issued under SARA was implemented in Alberta and Saskatchewan for the protection of the Greater Sage-Grouse.17 Generally, the prohibitions offered under SARA are limited to protecting species on federal lands and under federal authority.18However, section 80(4)(c) authorizes the federal government to identify habitats managed under a provincial government that require protection for endangered species and to prohibit activities on provincial land.19 It might seem surprising to the general public that the federal government has only exercised this power twice, but the intrusive nature of this power and uncertainty around its constitutionality are likely both reasons why it has rarely been used until recently.

This victory for the implementation of SARA will be of interest to Saskatchewan farmers, real estate developers, and others involved in provincial land use activities. The Federal Court clearly indicated here that it is well within the federal government’s constitutional powers to implement an emergency order and attendant restrictions on the development of private property on provincial land as deemed necessary.20 This ruling could also play a role in the Saskatchewan Court of Appeal’s reference case on the federal government’s ability to legislate a mandatory carbon tax on all Canadian provinces as it addresses the nature and scope of Parliament’s constitutional powers over environmental matters. Saskatchewanians will have to wait to see if our Court of Appeal takes a similarly generous approach to the question of federal powers as the Federal Court did in this case.

Please NoteThis is a summary of the Government of Saskatchewan’s factum for educational purposes only and is not an endorsement of their arguments or how they have interpreted case law. We have also posted a summary on the Government of Canada's factum HERE.

Preliminary FAQ

This reference case involves the GOVSK asking the Saskatchewan Court of Appeal (SKCA) to determine whether the FEDGOV’s carbon pricing legislation is constitutional. The hearing is set for February 13-14, 2019. Please see the following information below to have a better understanding of the whole issue.

How does the court determine whether legislation is constitutional? (Recommended read)

Knowing a bit about Constitutional Law is crucial for understanding the factum. A main tenet of this area of law is that each level of government has areas of powers designated to them called “heads of power”, which the Constitution Act, 1867 outlines in section 91 and 92.

In essence, sections 91 and 92 define the boundaries within which governments can act. Legislation passed by either level of government may be unconstitutional (otherwise referred to as “ultra vires”) if that law does not fall under the respective government’s head of power. In other words, the government has acted without legal authority. These limitations prevent the provincial government from legislating over matters that the federal government has responsibility over and vice versa.

For example, the federal government is responsible for enacting laws regarding the military, while provincial governments legislate with respect to municipalities. The provincial government cannot pass laws regarding military procurements, while the federal government cannot decide on the amalgamation of cities within a province.

A doctrine for determining whether legislation is unconstitutional is called the “pith and substance” analysis. This essentially involves finding the “essence” or “core” of the legislation at issue and then figuring out whether the government has authority from their respective heads of power to enact it. In examining the “essence” of a piece of legislation, the court will typically look at

The purpose of the law;

The legal effect of the law (what impact(s) would the law have if it functions as intended?); and

The practical effect of the law (what impact(s) would the law actually have?).

The Constitution does not designate some matters exclusively to either level of government, like the environment. What this means is that either the province or federal government can pass legislation regarding the environment, but they must still do so using one of their existing heads of power. This can make legislating confusing and messy, such as the issue at hand.

What is a reference case?

What the GOVSK is doing here is a “reference case” or “reference question”. It is not a lawsuit that involves two litigating parties. References questions give governments the ability to ask courts important legal questions. The court’s determinations are not legally binding like obtaining a judgment or order in traditional litigation, but governments typically treat them with the same weight and will follow the court’s decisions.1 Once the court reaches a decision, a party may appeal to the Supreme Court of Canada.

What is a factum?

A factum is counsel’s written arguments filed before the court hears the lawyers argue their case. Each level of court and jurisdiction usually has a specific set of rules that lawyers must follow when writing and submitting their factum.

The GGPPA applies to those provinces who did not have their own carbon pricing framework that meets the federal standards in place by 2018. The basic carbon pricing plan for Saskatchewan as outlined in the GGPPA consists of two main parts:

Part I: A price on fossil fuels paid by registered producers and distributors starting in April 20192; and

Part II: A separate output-based pricing system for facilities related to electricity generation and natural gas transmission pipelines that emit over 50 kt of CO2 equivalent per year. Smaller facilities that emit 10 kt tonnes or more of CO2 equivalent per year can voluntarily opt-in to the system over time.3

The carbon pricing plan ensures that any revenue raised will return to the province of origin to provide relief to vulnerable sectors/individuals and families and as support for other greenhouse gas emission reduction strategies in the province.

The GGPPA is the piece of legislation that the GOVSK is challenging as unconstitutional.

Summary of the Government of Saskatchewan's Factum

The GOVSK sets out to answers the following questions:

Is there an unwritten constitutional principle that prevents the FEDGOV from applying federal laws to override decisions in a single province on matters under provincial jurisdiction?

They ultimately conclude that the FEDGOV’s current carbon pricing plan is unconstitutional for the following reasons:

Legislation that applies only in provinces who chose not to implement their own carbon pricing violates the principles of federalism;

The legislation deals with matters that fall under provincial responsibility and is therefore outside of the FEDGOV’s areas of responsibility; and

The carbon price is a tax, and is therefore in violation of s. 53 of the Constitution Act, 1867.

The remedy the GOVSK is asking for is for the SKCA to declare the GGPPA unconstitutional and ultra vires.

1. The Carbon Pricing Legislation Offends the Principles of Federalism

The GOVSK’s first question in their factum is:

Is there an unwritten constitutional principle that prevents the federal government from applying federal laws to override decisions in a single province on matters under provincial jurisdiction?

In other words, does an unwritten constitutional rule allow the federal government to enact a type of legislation that, under a more traditional constitutional analysis, would be illegal? The GOVSK answers in the negative.

One of the GOVSK’s main arguments is that the GGPPAis unconstitutional for violating the unwritten rules of federalism, a pillar of the Constitution, specifically the following:

federal-provincial cooperation;

the balance of powers between the two levels of government; and

a respect for provincial autonomy.

The GOVSK makes it clear that the determining factors in this case are not the importance of the issue at hand (ie. the environment), the merits of the legislation itself, or what the FEDGOV thinks is “best for the country”. Rather, maintaining the jurisdictional balance between federal and provincial powers is “always more important” (para 50).

The GOVSK relies on SCC cases; privy council decisions; the preamble to the Constitution Act, 1867; and historical evidence of the framers’ intentions behind the Constitution Act, 1867, to establish that federalism determines the issue (see: pages 10-11).

Respecting the balance of powers and provincial autonomy

The GOVSK argues that based on the principle of federalism, laws should respect the balance of powers between governments and provincial autonomy (paras 22-23). The GOVSK relies on the following definition of “provincial autonomy”:

… provinces being free to define their own policies within their own spheres of jurisdiction without being obligated to conform to policies set down by the central government.

(para 33)

This provincial authority is the “essence” of federalism and limits federal powers. The GOVK argues that laws that do not uniformly apply across the country and instead target single provinces due to their personal choices on matters within their jurisdiction offends this autonomy (paras 35-37).

The GOVSK clarifies that a federal law does not have to apply uniformly to be constitutional, as the government must be able to take into account objective “social and economic differences” between provinces (para 38). Therefore, the GOVSK does not believe a national carbon pricing regime would be unconstitutional, including one that applied differently across the country, so long as the application is based on objective criteria:

39. Therefore, in this case, the Attorney General would have no constitutional objection if the federal government adopted a national carbon tax that applied uniformly all across the country. The Attorney General would also have no constitutional objection if the national carbon tax provided for variations based on objective criteria. The Attorney General’s fundamental objection to the application of the federal carbon tax is that it is directly tied to how Provinces have chosen to exercise or not exercise their own legislative jurisdiction. The carbon tax will apply in Saskatchewan only because the Government of Saskatchewan has decided not to impose its own carbon tax. This is constitutionally illegitimate.

Federal-Provincial Cooperation

The GOVSK also argues that the GGPPAundermines federal-provincial cooperation, another principle of federalism. They state that the issue of climate change requires coordination between the two governments, but the FEDGOV in this case has instead unilaterally imposed their own approach on Saskatchewan:

48. … the Court should show no deference to unilateral approaches with respect to matters that clearly cry out for cooperative measures. There will, quite simply, be no need for cooperative federalism if the federal government can unilaterally pursue its policy objectives with respect to matters falling within provincial jurisdiction without the need for the willing and voluntary participation of the provinces.

The GOVSK further argues that cooperative federalism also includes the right not to cooperate, which is in line with provincial autonomy, the principle of federalism discussed above (para 49):

49. … Federalism recognizes that there may be more than one way to solve problems and that “one size fits all” approaches are not necessarily the best.

In conclusion, the GOVSK attempts to establish that the carbon pricing legislation offends the principles of federalism and is therefore unconstitutional.

2. The carbon pricing legislation does not fall within a federal head of power

The GOVSK argues that the pith and substance analysis4 is not necessary because the legislation is already unconstitutional for undermining the principles of federalism, as outlined above.

However, in case the “pith and substance” analysis is required, the GOVSK’s position is that the GGPPA does not fall under a federal head of power and is therefore unconstitutional.

The GOVSK first addresses Part I of the GGPPA, which is the carbon price for registered producers and distributors. Again, the GOVSK admits that a national carbon pricing regime would be constitutional under the federal taxation head of power, s. 91(3). However, the GGPPA in effect and purpose targets only Saskatchewan (or other like provinces), which, the GOVSK argues, the FEDGOV has no constitutional authority to do (para 44).

The GOVSK argues that Part II, the application of carbon pricing to large-scale emitters, is unconstitutional for targeting local industries, such as oil and gas, which fall under the province’s responsibility (paras 44 – 46). The GOVSK argues that regulating these industries is a provincial head of power under

92(1), Local Works and Undertakings;

92(13), Property and Civil Rights in the Province; and

92(16), Generally all Matters of a merely local or private Nature in the Province.

As such, the GOVSK says the federal government does not have any constitutional authority to enact this legislation:

46. … While the purpose of the legislation may be aimed at reducing carbon emissions, the effect of the legislation is a massive intrusion by the federal government into an area of jurisdiction that has always been provincial. Therefore, under a traditional pith and substance analysis, the legislation is ultra vires.

The GOVSK further argues that the court should interpret the division of powers to give responsibility of the matter at issue to the government closest and most able to respond to the citizens affected (para 24):

24. … With respect to regulating carbon emissions by individuals and businesses, this is clearly the provincial governments.

In conclusion, the GOVSK argues that the carbon pricing legislation is unconstitutional largely because the FEDGOV does not have the legal authority to:

Apply a carbon pricing regime to single provinces, and

Touch on local matters and industry, both of which the GOVSK submits are under the province’s authority.

Before addressing this question, the GOVSK first establishes that the carbon pricing regime imposes a tax in the province.

a) The legislation imposes a tax

The GOVSK’s position is that the carbon price is a tax. First, the GOVSK argues that applying a tax to a single province is particularly offensive to the principles of federalism, given the type of authority the taxation powers give to governments:

51. … The authority to tax is one of the most powerful tools that governments possess. As noted by Laforest J. in the GST Reference, the power to tax is the power to destroy. 56 The potential for misuse of a power to tax in one province, but not others, is manifestly apparent. The power to tax therefore must be confined to its strict constitutional limits.

If the FEDGOV tries to argue that the carbon price is part of a constitutional regulatory regime, and is therefore legal, the GOVSK argues they should fail. First, from the perspective of the consumer, the carbon price is a tax. Second, the law distinguishing taxes from regulatory charges suggests that the carbon price is a tax (para 52). As stated in Westbank First Nation v. British Columbia Hydro and Power Authority, 3 SCR 134 (1999), a constitutional regulatory regime must have the following characteristics:

A clear regulatory purpose;

A complete and detailed code of regulation; and

A clear relationship between the person being regulated and the regulated activity.

(at para 54)

The GOVSK argues that whether the carbon price is called a “tax” or “charge” is irrelevant (para 53). Focusing on the character of the carbon price, the GOVSK concluded that it is a tax because:

Consumers of carbon are required to pay money to the state;

Part 1 is administered by the Minister of Finance;

The money collected are paid into the “Consolidated Revenue Fund”; and

Any disputes regarding the payments are dealt with by the Tax Court of Canada.

(at para 54)

The GOVSK anticipates the federal government also making the arguments that the carbon price is constitutional for:

being part of a regulatory regime in Part 2; and

setting out to alter behaviour and therefore not a tax; and

Being revenue neutral.

First, the GOVSK once again reiterates that Part 2 is unconstitutional for regulating matters of local concern, as previously explained, and an unconstitutional regulatory regime cannot support a valid regulatory charge (para 56).

Even if Part 2 was constitutional, they argue the legislation must still fail as there is no connection between the regulation of businesses in Part 2 and the taxation of consumers under Part 1 (para 56):

56. … there is simply no connection between the regulation of businesses called for by Part two of the Act and the taxation of consumers under Part one of the Act. The two parts of the Act are separate and distinct just like the different parts of the Assisted Human Reproduction Act were separate and distinct, Consumers are not being regulated in any way. They are only being asked to pay a tax. The Act contains no provisions aimed at reducing the amount people drive their cars or how warm they keep their houses in the winter. Consumers of carbon are simply not part of any regulatory regime.

Regarding the second anticipated argument, the GOVSK posits that the FEDGOV should not be allowed to avoid the implications of a tax, such as sections 53 and 125 of the Constitution Act, 1867, simply by arguing that its purpose is to change someone’s behaviour (para 57):

57. … To do so would largely wipe out the distinction between taxes and regulatory charges in the federal sphere and goes far beyond anything recognized in previous cases…

As for the argument about the carbon price not being a tax for being revenue neutral, the GOVSK suggests that this doesn’t change the fundamental nature of being a tax. Incorporating revenue neutrality in the legislative scheme is simply the FEDGOV choosing how to spend the revenue from the carbon pricing. They cite Winterhaven Stables Limited v Canada (Attorney General), 1988 ABCA 334 to show that revenues collected by the federal government and paid back to provinces remained federal taxes under s. 91(3) of the Constitution Act, 1867 (para 58). The GOVSK argues that this aspect of the carbon price seems more like “wealth distribution”, which is a consideration under tax regimes, not regulatory ones (para 58).

b) As a carbon tax, it violates s. 53

Now that the GOVSK has explained why the carbon price is a tax, they suggest that the legislation would be unconstitutional for being contrary to s. 53 of the Constitution Act, 1867. Section 53 states:

Appropriation and Tax Bills

53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.

The intent behind s. 53 is inherently democratic – that a government should not be able to impose a tax without the authority of Parliament or the legislature (para 60). To do otherwise would mean imposing “taxation without representation” (para 59).

The GOVSK cites Eurig Estate (Re), 2 SCR 565 (1998), which states that taxes must be imposed by Parliament, not the executive, and only the “details and mechanisms” could be delegated to other bodies like the Governor in Council (para 62). Otherwise, the legislation should cover the “who, what and where” of the tax (para 62).

As such, the GOVSK argues that the carbon price goes well beyond delegating just the “details and mechanisms” to the Governor in Council (para 63). The power to determine in which provinces the carbon price is to apply is one such example of an over-extension of power (para 63):

63. … For example, it provides that the determination of which provinces and territories the carbon tax will apply in is a decision to be made by the Governor in Council. The Governor in Council has an almost unfettered discretion when it comes to making this decision. The only limitation is that the Governor in Council must take into account the stringency of provincial pricing mechanisms for greenhouse gas emissions. But the term “stringency” is not defined in the Act. The decision to impose the carbon tax in one province but not another can be based on a political decision as opposed to the application to any objective criteria. It is submitted that who the tax applies to and where geographically the tax applies (as opposed to merely setting the rate of taxation) 66 are critical components of any taxation scheme and are not mere matters of “details and mechanisms”. Therefore, Parliament’s failure to set out in the Act itself which provinces and territories the tax will apply in is, constitutionally, a fatal flaw.

Also stated in Eurig Estate, the taxing power must be “clear and unambiguous” (para 64). Any legislation which purports to impose a fee, when it is actually a tax (such as the carbon pricing regime, as suggested by the GOVSK), is a violation of this principle:

64. … Accordingly, if the statute does not acknowledge that it is delegating taxing powers but rather purports to delegate powers concerning regulatory fees, once a court finds that the fees are in fact taxes, this rule will be, ipso facto, violated. This is precisely the case here. The Act does not purport to delegate any taxing powers but rather pretends that the taxes are regulatory charges. Therefore section 53 is violated.

SKAEL’s Initial Questions/Thoughts

How will the GOVSK reconcile their position that a national carbon pricing regime would be constitutional with their assertion that the current plan is unconstitutional for impacting local industries?

Other legal experts have suggested that the federal government may be able to impose carbon pricing under several heads of power, including POGG (Peace, Order, and Good Governance), criminal, and trade and commerce. How will the province respond to these other potential sources of authority?

The GOVSK argues that the GGPPA is unconstitutional for not respecting federalism (ie. federal-provincial cooperation and provincial autonomy). However, the GGPPA only applies if provinces chose not to participate in a nation-wide carbon pricing plan that already gave a lot of freedom to provinces to enact their own regimes. How does considering the wider context of the whole federal carbon pricing policy affect the GOVSK’s position?

The courts often rely on the principles of federalism as guidance for interpreting pieces of legislation as part of the pith and substance analysis, but these principles are not often the sole basis for rejecting legislation as unconstitutional. How will the courts and the federal government approach this novel argument?

The SCC has stated that every government (federal, provincial, and municipal) have powers to legislate over environmental issues and “is an international problem that requires action by governments at all levels”.5 Does the GOVSK’s position fall enough in line with the SCC’s view towards each level of government’s responsibility for the environment?

]]>https://www.skael.ca/?feed=rss2&p=7250Legal Challenges to the Government of Saskatchewan’s Proposed Sell-Off of Public Pastureshttps://www.skael.ca/?p=610
https://www.skael.ca/?p=610#respondWed, 01 Aug 2018 00:23:40 +0000https://www.skael.ca/?p=610

SUMMARY

This opinion piece was written in response to the Saskatchewan Government’s proposed sell-off of Crown land and details the legal protections that could be applicable to protecting Saskatchewan Public Pastures.

Introduction

The difficulties facing a legal challenge to the Government of Saskatchewan’s proposed sell off of public pastures are many. Most of the tactics involve holding the government to standards which it has set for itself. This is not a passive or defeatist stance, but it does require constant reliance and cooperation with the public and policy groups that are not necessarily part of the legal conversation. Indeed, it has been these groups that have gained a vital victory for the environment and public pastures in Saskatchewan. Due to letters, meetings, and participation in the online survey, the government has changed its mind and will lease public pastures instead of selling them. This development has brought the research into a legal challenge to an end, but the information gathered should be preserved in the event that Saskatchewanians have to defend their public pastures again.

This report identifies what has been learned. Beginning with an overview of the public pastures in question, the report then moves to a section largely revolving around The Wildlife Habitat Protection Act (the “WHPA”), the Crown Land Ecological Assessment Tool (the “CLEAT”), and The Conservation Easements Act (the “CEA”). The focus will then shift to what can be done now. This will describe efforts that can be taken by legal and non-legal persons who want to help public pastures and the environment in Saskatchewan. Finally, this report will discuss what lawyers and law students can do in the future if the government decides to break up or sell public pastures.

Overview

There are two categories of pastures that are of concern in this report: federal pastures in the Community Pasture Program (the “CPP”) and provincial pastures in the Saskatchewan Pastures Program (the “SPP”). The research was focussed on the Government of Saskatchewan’s proposed sale of the SPP lands, but much of what was learned can easily apply to both.

In 1935, the federal government enacted the Prairie Farm Rehabilitation Act (the “PFRA”) in order to deal with catastrophic levels of land erosion and abandonment brought on by drought. The CPP was created under the PFRA to manage and restore the pastures (the “PFRA pastures”).1 In 2012, Ministry of Agriculture and Agri-Food Canada announced that the CPP would be wound down and the lands would revert to the provinces.2 This began a six-year transition period; the last of the PFRA pastures in Saskatchewan reverted to the provincial government on March 31, 2018. The Saskatchewan Government decided to lease these lands to interested parties rather than sell them off.3 Current patrons will have the first opportunity to lease or purchase the pastures, and ecologically sensitive lands may be protected by the WHPA.

The SPP was established in 1922 and, at the time this article was authored, operated 50 pastures.4 These pastures supported about five percent of the province’s cattle and twelve percent of Saskatchewan’s cattle producers. The SPP lands disproportionately supported small scale ranchers, and the program allowed many ranchers to use pasture lands that they would not have been able to afford or look after on their own. However, the 2017 provincial budget announced that the SPP program was going to be closed over the next three years. Thanks to a stampede of public pressure, the government decided to lease the lands instead of selling them.5

These pastures are of incredible importance to ranchers, conservationists, and Indigenous peoples alike. They are a resource for small-scale ranchers, allowing them to work together and access pastures for their herds. For conservationists, these pastures represent a vast collection of wetlands, unbroken prairie, and wildlife habitats. For Indigenous peoples, public pastures represent territory that can be used to exercise Treaty and Aboriginal rights. It is wonderful that the SPP lands will remain publicly owned, and it remains prudent to prepare a defence for these pastures should the need arise.

Research

A legal opposition to the sale of public pastures in Saskatchewan faces numerous difficulties. The provincial government’s actions are really only bound by legislative conditions, conditions that they are largely able to change. There are also Aboriginal and Treaty rights to consider; these will be discussed later. While public pressure caused the government to refrain from selling off the SPP pastures, the strongest statutory protection lies in the WHPA.6

The Wildlife Habitat Protection Act

The WHPA does as its name suggests; it protects wildlife habitat. It is not perfect and indeed could be improved greatly. One such imperfection is that it does not often cover public pasture lands. These pastures, which represent thousands of acres of wetlands and unbroken prairie, would be ideal habitats to protect to ensure the well-being of wildlife in Saskatchewan. There is a lot of territory within public pastures which is not protected by the WHPA. Nevertheless, the overlap that does exist can provide the legal catalyst that is needed to protect these pasture.

Since the primary goal of this research was to keep the pastures publicly owned so that they could be used by ranchers and to preserve ecological integrity, the issue of non-saleability was critical. The Government of Saskatchewan recently evaluated all territory under the WHPA and determined what could or could not be sold. There is “high” value land that cannot be sold, “moderate” value land that can be sold with Crown Conservation Easements (“CCEs”), and “low” value land that may be sold without any easements or conditions. The way in which the WHPA lands are evaluated is by using the CLEAT, or so it would seem.

The Crown Land Ecological Assessment Tool

The CLEAT is a computer model for evaluating lands and has been highly touted in government publications, newspapers, and in Legislative committee meetings. It was developed by scientists, economists, and government agencies in order to evaluate factors including natural cover, unique ecological features, road density, species at risk reports, size of the parcel, proximity to other conservation lands, and activity on adjacent lands (for a more complete list of factors, see Appendix C).7 The parcels of land are put into two categories: “non-saleable” (high value) or “review” (moderate or low value). The funny thing is that is it rather difficult to find out how the CLEAT really works, and it is disheartening to find out what the CLEAT is really able to accomplish.

First of all, there is no requirement in the CLEAT process to physically go to the land that is being evaluated. In fact, in 2010 when the CLEAT was getting started, the government had only been to 272 of the 28,695 parcels it had evaluated – less than one percent!8 That means that the approximately 525,000 acres of WHPA-designated land classified as having low value may now be sold off without conditions and without much, if any, physical inspection of the land.9 Remember that these are lands that were previously considered valuable enough to be placed within the WHPA. To make matters worse, there is little to no transparency when it comes to this process.

Brant Kirychuk, the Executive Director for the Ministry of Environment, stated that the CLEAT “represents an intermediary process and does not result in a finalized value for each parcel. Accordingly, the scores are considered to be for internal use only.”10 The CLEAT, the method by which all environmental and economic data is gathered in order to determine the value of a parcel of land, is not what determines what lands are protected and what lands are sold. For example, the Dixon and Mankota SPP pastures both have parcels that are subject to a Species at Risk Act Emergency Protection order for the Greater Sage Grouse but are only placed in the “review” category.11 This land, which the federal government has deemed so critical to an endangered species as to justify an infringement upon the division of powers, is not valuable enough to the Government of Saskatchewan to be categorized as high value. This process may sound similar to other such review methods, but it lacks a vital quality: transparency. Take the Committee on the Status of Endangered Wildlife in Canada (the “COSEWIC”) for example. The COSEWIC evaluates the status of species in Canada, provides its reports and recommendations to the federal government, and the government makes the decision regarding if and how species are labelled as “at-risk”. And even though the federal government may not act on the COSEWIC’s advice, the reports are always published. The CLEAT reports or scores, on the other hand, are not released to the public. The most dangerous part of this is that, since the CLEAT is a mystery to the public, there is no way for the public to hold the government accountable for how it evaluates WHPA-designated lands.

The Conservation Easements Act

Since the CLEAT cannot be relied upon to ensure that the government protects WHPA lands, we must work with what has been decided and hold the government accountable as far as we can. The high value non-saleable WHPA lands are fairly straight forward and help keep pastures publicly owned for reasons that will be discussed later. It gets interesting when working with WHPA lands under the “review” category.

These lands are eligible for CCEs, but such easements are not placed on the land until they are likely to be sold:

When a lessee of land in the “review” category expresses interest purchasing a parcel, a secondary review is triggered. This review consists of a visual evaluation of the parcel and its surrounding area using high definition aerial imagery. Factors considered during this review include the percentage of native vegetation present, the presence of rare species and the overall context of the parcel within the landscape. The result of this review will confirm whether a sale will be subject to a Crown Conservation Easement.12.

Once again, there is no requirement for land to be physically inspected before it is given a low or a moderate value. For the parcels of moderate value, a CCE will be placed on that land. CCEs are a new kind of easement specifically tailored for WHPA lands, are defined by s. 11.21 of the CEA.13. The Crown is able to place these easements on any land that it possesses, and they have the purpose of preserving ecologically important factors associated with the land. They exist in perpetuity or until they are terminated by the Crown.14

The Government of Saskatchewan has not acted on its own when it comes to the creation and enforcement of CCEs, as:

several environmental non-government organizations have been engaged throughout the development of the model and review process, and continue to participate in the development of a monitoring, compliance and enforcement plan for lands protected through Crown Conservation Easements. These organizations include Ducks Unlimited Canada, Nature Saskatchewan, Saskatchewan Wildlife Federation and Nature Conservancy Canada.15

Ducks Unlimited Canada uses a similar method of divesting property interests when they sell land in Saskatchewan, and they believe that CCEs will protect the affected land indefinitely.16 There are, however, some concerns about the enforcement and longevity of CCEs.

First, the CEA states that the government may enforce CCE obligations.17 With the track record of environmental enforcement in Saskatchewan, that clause can be worrisome. Second, the easements may be terminated if the landowner applies to have the easement removed and if the Minister is satisfied that it is in the public interest.18 “Public interest” is not defined in the legislation. The Ministry of Environment has stated that the interest would have to be significant and that the Ministry “has previously used the example of a new bridge or a major public work as a public interest on the scale necessary to remove a Crown conservation easement.”19While this explanation may seem compelling, there is no guarantee that the ecological integrity of the land will be taken into account when determining what is in the public interest. Furthermore, any decision made pursuant to this section is “final and conclusive and no proceedings by or before the minister may be restrained by injunction, prohibition or other proceedings or are removable by certiorari or otherwise by any court.”20

What Can Be Done Now?

Unfortunately, there does not seem to be any legal tool to protect the pastures directly, so the WHPA and the CEA provide indirect ways to prevent the sale and ecological degradation of the pastures. There are many things that can be to help preserve public pastures. These actions are as much policy as they are legal, so they can apply regardless of one’s legal knowledge or training.

1. Campaign for more public pasture lands to be included in the WHPA

Since there is no guarantee that public pasture lands are within the WHPA, it could accomplish quite a lot if more lands were given that legal protection. Appendices E and F, to be included in the third segment, will detail how the SPP and former PFRA pastures, respectively, overlap with WHPA lands. The SPP pastures range from 1%-87% overlap with WHPA lands, and only a few have no overlap at all. The former PFRA pastures range from 2%-12% overlap, and a large majority of the pastures have no overlap at all. The more overlap a pasture has, the more legal protection it garners, and those without any overlap are at risk of being neglected altogether.

The government has indicated that vacant Crown land will be assessed and placed within the WHPA where appropriate.21 The Honourable Mr. Cheveldayoff, as the Minister for the Environment in 2014, stated that only land with high ecological value would be added in the WHPA.22 This seems to risk leaving out pastures in two ways. One, only vacant Crown land will be assessed. Two, land may be assessed to only have low or moderate value, such as Greater Sage Grouse habitat, and would never be added to the WHPA. Such land might not even receive a CCE. Nevertheless, this might be a good way to add WHPA protections to pastures.

As stated before, most of the PFRA pastures have no overlap with WHPA lands. These pastures have been in the process of reverting to provincial control for several years, and the last set was transferred in Spring 2018. There is a possibility that some of these pastures may be vacant for a season or two while the government and the ranchers reach lease agreements. All of the PFRA pastures are labelled as protected areas – Category VI – by the International Union for Conservation of Nature (the “IUCN”). This category is for protected areas with sustainable use of natural resources.23 The IUCN is a respected international environmental organization, and their observations should bear weight as to how public pastures in Saskatchewan should be treated.

There needs to be public pressure to ensure that vacant public lands, especially vacant pastures, are assessed and placed within the WHPA. It might also be effective to campaign for pasture lands to be assessed and incorporated regardless of whether they are vacant or not.

2. Campaign for more species to be evaluated and labelled as “at risk”

Although the CLEAT is not determinative in whether a parcel of land is labelled as high, moderate, or low value, it is influential. The ecological and risk criteria (see Appendix C) are largely not subject to policy considerations. However, species at risk, as identified by the COSEWIC or The Wildlife Act, 1998, are a factor in the CLEAT evaluations.24 Public pastures in Saskatchewan are a haven for wildlife, and the majority of the pastures are home to at risk species.25 It may be a worthwhile cause to campaign for species that reside in public pastures in Saskatchewan to be labelled as “at risk”, as this could have the effect of increasing the land under the WHPA and increasing the probability that protected lands will be designated as high value.

3. Ensure the government is maintaining the quality of public pastures

There are going to be a lot of new leases created with former SPP pastures in the next few years. Former PFRA pastures are in the process of being leased or sold as well. This process will need to be scrutinized to ensure that the lands are used fairly and with adequate environmental considerations. We need to ensure that previous patrons have the ability to lease the pastures and maintain their herds. We also need to ensure that there are competent regulations and oversight so that disasters, like the loss of 200 cattle near Shamrock, Saskatchewan in early July 2017, do not happen on public pastures.26

4. Hold the government to its own standards with Crown Conservation Easements

One way that to maintain the quality of public pastures and WHPA lands will be to ensure that CCEs are being properly created and followed when reviewable WHPA lands are being sold. While the majority of reviewable land sold will have a CCE, we must watch and make sure that the value designation is not arbitrary. Even if a decision to label a parcel as low value cannot be challenged legally, it could have the potential to be a political issue. Right now in Saskatchewan, the way in which government land is handled and sold can be very political.

Once a parcel of land has been labelled as moderate value and given a CCE, there should be vigilance in ensuring that the obligations of the easements are followed. The public can be involved in this by directly communicating with the Ministry of Environment or by being involved in an environmental non-governmental organization that is able to participate in the enforcement of CCEs. For those who want to find out what CCEs exist and where they are, s. 11.4 of the CEA requires that such easements be registered with the Land Titles Registry and that written notice be given to municipalities where land affected by the easements are located.27

5. Campaign for more open and easily accessible information

One of the greatest obstacles to creating a strong defence of public pastures is availability of information. The opaqueness of the CLEAT and the government’s decisions in ranking WHPA lands is a serious problem, and it can be hard to tell the difference between good science and arbitrariness. It would make it a lot easier to research these issues, and it would create more public confidence, if these processes were more transparent to the public.

Beyond what information is made available, there is an issue with how the government’s data is currently made available. Information regarding the overlap of WHPA lands and public pastures seem only to be available on cumbersome mapping software. Campaigning for easily accessible information in this area could make it easier to respond to future threats to public pastures faster and more effectively.

6. Make sure that the government does not break up public pastures

This last recommendation is certainly the most important one because there could be dire consequences if pastures are broken up, and it is apparent that the government will listen to public pressure on this issue. First, it appears as though the Government of Saskatchewan has, or had, a desire to sub-divide public pastures. This was one of the questions in the recent survey regarding the future of SPP lands:

Some of the parcels of land are significant in size. Do you agree with the land being sub-divided into smaller parcels where feasible to make it more practical to manage, lease or sell?28

Despite the positive language suggesting sub-division would be beneficial, 60.7% of the respondents said “No” while less than 30% agreed with the government’s proposition.29

The danger surrounding breaking up the pastures is that this would certainly result in many of the new parcels being without any protection from the WHPA. Most of the pastures that have overlap with WHPA lands only have a small fraction of their land in this category. If these pastures were sub-divided, there could easily be small fragments that mostly overlap with WHPA lands and large parcels with no overlap. If the government decides to sell the pastures sometime down the road, those large parcels would be sold with no conditions and thousands of acres of native prairie and wetlands could be lost. To support the sub-division of public pastures would be to support ecological gerrymandering of much of southern Saskatchewan’s remaining natural habitat.

What might be done in the future?

In addition to six recommendations regarding what people can do now in defence of public pastures, there are also four areas of research that lawyers and law students might be interested in pursuing if the public ownership of these pastures becomes an issue in the future.

1. Find the evaluations of lands when they were originally put into the WHPA

This research may provide some insight into the quality of certain parcels of land, but it is a long shot. First, in order to determine when each individual piece of land was put into the WHPA, one would have to review decades of Orders in Council documents.30 These documents are likely to only outline the lands protected and not the evaluations done to place them in the WHPA. I currently do not know where to find the evaluations of individual parcels, but the older parcels were selected using the Terrestrial Wildlife Habitat Inventory (the “TWHI”).31 The TWHI was conducted in the late 70s and early 80s, and the lands that were determined to be “Very Important” wildlife habitat formed the basis of WHPA lands.32 Something to note is that it was considered to be a minimum requirement for 50 percent of the land to be covered by native vegetation in order to be “Very Important”.33 It might be worth looking into why parcels that were considered to be so important in the 1980s, with native prairie comprising over half of the land, are now labelled as having low or moderate ecological value and are potentially being sold off.

In 1984, the Government of Saskatchewan recognized the need to keep such lands public; a finding that is even more true today. We all know that if public pastures and WHPA lands are sold, the “land would inevitably be subject to the development pressures imposed by current agricultural economics.”34

2. Ask for the detailed analyses of two similar pieces of land within one pasture

The purpose of asking for detailed records of the evaluative process, the CLEAT and the government’s decision, of two analogous plots of WHPA protected land in a pasture is to see if the decision making is arbitrary. These two quarter-sections would have to be designated as non-saleable and reviewable, and efforts should be taken to ensure that the characteristics of the parcels are very similar (size, water coverage, proximity to water, production state, etc.).

I would recommend looking at a SPP pasture that is set to have its last season in 2019, such as Arena, Grainland, Dixon, or Calder-Togo. This way, if there is the hint of arbitrariness, it will provide the researcher the most time to create a response or at least raise public awareness of the issue. The Ministry of Environment has been fairly adamant that the CLEAT and the rest of the review process are for internal use only, so it is very likely that a Freedom of Information application will have to be made.

This avenue, if successful, may not provide the grounds for a legal challenge, but could be an effective political argument that may pressure the government into acting in a more environmentally responsible manner.

3. Research into possible applications of the Public Trust Doctrine

The Public Trust Doctrine is a legal concept that holds that “there are certain public rights that are so important that the Crown holds them in trust for the public at large.”35 In an environmental context, this argument is that there are certain natural resources that belong to all residents of a jurisdiction and cannot be privately owned or controlled because of the resources’ inherent importance to each individual and society as a whole.36 Public pastures are natural resources that are incredibly valuable to ranchers, conservationists, and Indigenous peoples for reasons that have been previously discussed.

The big problem is that the Public Trust Doctrine has not yet been recognized as authoritative when it comes to environmental issues in Canada. There is a lot of pressure from the public and environmental groups to have the courts or elected governments incorporate this doctrine. There is a very real possibility that the Public Trust Doctrine could be recognized in Canada within the next few decades. One reason to argue for this is that the doctrine is a way in which the public pastures may be directly defended by legal means.

4. Work closely with Indigenous groups to ensure that their rights are protected

The only constitutional protection of the environment in Canada resides in section 35. The duty on the Crown to consult and accommodate could be a powerful tool in keeping public pastures publicly owned. Canadian jurisprudence has established that the Crown must act in such a way as to not make Treaty rights illusory.

Public pastures represent a large amount of land that can be used by Indigenous peoples to exercise their Treaty and Aboriginal rights. If these lands are sold, they will inevitably be developed and no longer be open to Indigenous peoples to exercise their rights. The loss of these pastures is a loss of the ability to access the lands to hunt, collect medicines, and carry out other culturally important activities.37

The British Columbia Court of Appeal held that any geographic reduction on a Treaty right must be justified under the Sparrow test.38 Also, the Government of Saskatchewan may not necessarily rely on the possibility of public land elsewhere to satisfy the Treaty requirements. In Mikisew Cree First Nation, the Supreme Court of Canada held that the Crown cannot effectively take up all lands within a First Nation’s traditional territory and expect them to go to another First Nation’s traditional territory to engage in their treaty rights.39 These rights are not ascertained on a treaty-wide basis, but instead in relation to the traditional territory of the First Nation.40 With grasslands and wetlands being lost at up to thirteen percent a year, the loss of Saskatchewan’s public pastures could reduce or eliminate the ability of some First Nations to exercise their Treaty and Aboriginal rights altogether.41

In addition, Indigenous peoples have an interest in keeping the pastures publicly owned because the sale and subsequent development of these pastures could lead to archeological sites and cultural history, such as burial sites, teepee rings, and buffalo jumps, being lost.42 Once these sites are lost, it will be impossible to truly restore them.

A few PFRA pastures have select parcels that have a “duty to consult prior to sale” provision. While usually only comprising of a few quarter-sections, these provisions have the potential to determine the outcome of entire pastures, assuming the pastures are not sub-divided.

Whatever action is taken in the future, an honourable relationship with Indigenous peoples should be a priority. This should involve discussions regarding how to move forward, ensuring that the Crown is meeting its duty to consult and accommodate, incorporating the principles in the United Nations Declaration on the Rights of Indigenous Peoples, and more.43 Also, if any pastures are to be sold, efforts should be taken to ensure that the government is acting in accordance with the Saskatchewan Treaty Land Entitlement Framework Agreement.44

Conclusion

The research completed here has elucidated one finding above all: the most effective results for public pastures will come when legal researchers, political activists, and concerned citizens work together. Each faction can help refine the work and expand the effects of the others. For myself, political activists and concerned citizens made me aware of the situation and directed my attention to issues that needed to be investigated. It is my hope that my research has revealed the ways in which the pastures are most vulnerable, and thus need more protection, as well as methods to which the government can be held to account.

Your correspondence to the Minister of Agriculture and Agri‐Food ‐ Quote: 231877

Minister / Ministre ﴾AAFC/AAC﴿ <minister_ministre@agr.gc.ca>

Thu 7/6/2017 9:13 AM

To: Crawford, Jordan <jpc064@mail.usask.ca>;

2 attachments

Annex B ‐ Transfer of Administration and Control for Surrender of Lease of Community Pasture Lands to the Province of Saskatchewan﴾1﴿.PDF; Annex A ‐ Transfer and Acceptance of Administration and Control of Community Pasture Lands to the Province of Saskatchewan ﴾TAC﴿﴾1﴿.PDF;

Quote: 231877

Jordan Crawford

jpc064@mail.usask.ca

Dear Jordan Crawford:

Thank you for your correspondence requesting information related to your research into public pastures in Saskatchewan.

The Government of Canada made a decision to discontinue the management and operation of the Community Pasture Program (CPP), which Agriculture and Agri­Food Canada (AAFC) operates as part of the federal government’s Deficit Reduction Action Plan (DRAP). In 2012, AAFC announced that the CPP would be wound down. Since that time, the Department has worked with the Government of Saskatchewan to phase out federal involvement in the management of federally operated community pastures in Saskatchewan.

The decision to include the CPP as part of DRAP included a recognition that the Program had more than achieved its original objective. While a strategic environmental assessment was not conducted as part the DRAP process, the 2012 decision to divest the federal program took into account two key environmental considerations. First, Canada had fulfilled its commitment to rehabilitate lands detrimentally affected by agricultural expansion of the early 1930s. Second, Canada’s stewardship of these lands lasted well into the period where Saskatchewan and the private sector had established capable, professional land managers able to guide stewardship of provincial Crown lands. Supplementing the capability of these professionals is federal (Species at Risk Act) and provincial (The Environmental Management and Protection Act and The Wildlife Habitat Protection Act) legislation.

The vast majority of the lands in federal community pastures in Saskatchewan are provincial Crown lands, transferred or leased to the Government of Canada by Saskatchewan pursuant to a 1949 federal‐provincial agreement. The agreement requires Canada to revert or surrender these lands back to Saskatchewan when Canada ceases to use them for community pasture purposes. Examples of the transfer documents you requested are enclosed. The enclosures include a transfer of administration and control between the Government of Canada and Saskatchewan. This transfer document is used in circumstances where Saskatchewan holds a reversionary interest in the lands. Also enclosed is a surrender of lease used in circumstances where Saskatchewan is the registered title holder to the lands and Canada is the lessee.

Implementation of the decision to discontinue the management and operations of federal community pastures began in 2013. It is anticipated that implementation will be complete by the end of 2018. The transition over a six‐year period aims to ensure that the process optimizes future economic and employment opportunities for the affected rural communities. The list of the community pastures that have been transferred to Saskatchewan or anticipated to be transferred to Saskatchewan in 2018 is enclosed.

With regard to your follow­up query requesting assessments on provincial Crown lands, that information now resides with the Saskatchewan Ministry of Agriculture. I encourage you to contact the Ministry’s Lands Branch at 304‐787­5322 for this information.

I hope that you find this information to be useful. Again, thank you for writing.

To clarify, the CLEAT is not a checklist that is used by individuals to assess WHPA. It is a computer-run model incorporating existing datasets that has been applied to the entire WHPA dataset in order to provide a single score for each individual WHPA parcel. This score is based on a wide variety of ecological and risk criteria. A complete list of the criteria includes the following:

Thank you for contacting Ducks Unlimited Canada (DUC), regarding the transfer and potential sale of the former PFRA lands and the potential sale of the Saskatchewan Pasture Program (SPP) lands.

DUC has not published anything specifically on the sale of either the PFRA or SPP lands.

[…]

While the [former PFRA] land is owned by the provincial government, it has taken a less active role in the day to day management of the grassland. DUC has been told by the Minister of Agriculture that if any of the land will be sold, the natural areas will be protected by a Crown Conservation Easement. This method of divesting property is the same method that DUC uses when we sell land ourselves. DUC believes that the placement of a legal Crown Conservation Easement will protect the land in perpetuity.

As the government moves to divest the SPP lands, they have begun open consultations on how best to sunset their program. To my knowledge, the Minister has not yet made a determination on how the SPP process will roll out. DUC provided in person opinion on the sunset of the SPP and presented that the government should follow the PFRA model – 1st keep the pastures under Crown ownership and lease the lands back to the existing patron groups. 2ndif the lands are sold to protect them with a Crown Conservation Easement. 3rdkeep the pastures as the existing blocks that they are – DUC believes that the pastures have been operating as existing large units of land to the benefit of wildlife, society and the grazing livestock – we believe that the lands should remain in the existing blocks that they are currently operated under.

It is our understanding that all of the unbroken pasture will remain protected if sold from the former PFRA lands. DUC will be waiting to hear from the Ministry of Agriculture once a decision has been made with respect to the SPP.

Habitat loss is one of the biggest threats to our natural environment. In SK we continue to lose, on average, about 25 acres of wetlands each day. The ongoing wetland loss is contributing to global warming, downstream water degradation and increased flooding in many parts of eastern Saskatchewan. This also has the potential to increase reliance on provincial and federal disaster funds which is a cost to all taxpayers.

If I can be of further assistance, please contact me at your convenience, either return of email or call the number found in my signature.

*Please note that most of the PFRA pastures which have been transferred back to Saskatchewan are labelled as being within federal jurisdiction using this map. The information may not be completely current. This research was completed in June of 2017.

DECISION

Is the appeal allowed such that [C-A]’s acquittal is restored? No. S. 15(1) was clearly engaged and [C-A] was required to report discharging fly-rock (a contaminant) into the natural environment.

FACTS

[C-A] was a subcontractor conducting operations to widen a highway commissioned by the Ontario Ministry of Transportation. On November 26, 2007, an accidental blast sent “fly-rock” (debris) 90 metres into the air, crashing through the roof of a home (damaging the kitchen ceiling, siding, and eavestroughs), hitting a car (breaking the windshield and damaging the roof), and leaving a “significant” amount of rock in the yard (para 4). [C-A] immediately reported to the Ministry of Transportation, but not the Ministry of Environment, who was not notified until 2008 by the Ministry of Transportation.

In September 2009, the [C-A] was then charged with failing to report a discharge of a contaminant in the natural environment to the the Ontario Ministry of Environment (ON-MOE) contrary to s. 15(1) of the Ontario Environmental Protection Act (ON-EPA).

DISCUSSION

Description of environmental legislation

As environmental issues are difficult to fully capture and protect in legislation, it is often made broadly, allowing it to address “‘a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation'” (para 9, quoting from Ontario v Canadian Pacific Ltd.).

In particular, s. 14(1) is an effective preventative measure by prohibiting discharges of contamination into the environment where it may have an adverse effect, and the complementary s. 15(1) which requires the reporting of this discharge to the ON-MOE.

INTERPRETATION OF s. 15(1)

The issue of the appeal was the reporting requirement in s. 15(1), which states:

15.—(1) Every person who discharges a contaminant or causes or permits the discharge of a contaminant into the natural environment shall forthwith notify the Ministry if the discharge is out of the normal course of events, the discharge causes or is likely to cause an adverse effect and the person is not otherwise required to notify the Ministry under section 92.

To break it down, a person must report to the ON-MOE when (at para 36):

A “contaminant” is discharged;

the contaminant is discharged into the “natural environment” (the air, land, water, or any combination or part thereof, in the Province of Ontario);

the discharge is out of the normal course of events;

the discharge causes, or is likely to cause, an “adverse effect”, namely one or more of the effects listed in paras. (a) to (h) of the definition section;

the adverse effect or effects are not trivial or minimal; and

the person is not otherwise required to notify the Ministry under s. 92, which addresses the spill of pollutants.

“natural environment” means the air, land and water, or any combination or part thereof, of the Province of Ontario;

“discharge”, when used as a verb, includes add, deposit, leak or emit and, when used as a noun, includes addition, deposit, emission or leak;

“contaminant” means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect;

“adverseeffect” means one or more of,

(a) impairment of the quality of the natural environment for any use that can be made of it,

(b) injury or damage to property or to plant or animal life,

(c) harm or material discomfort to any person,

(d) an adverse effect on the health of any person,

(e) impairment of the safety of any person,

(f) rendering any property or plant or animal life unfit for human use,

(g) loss of enjoyment of normal use of property, and

(h) interference with the normal conduct of business;

[A-C] tried to argue that because the discharge did not impair the natural environment (which is listed as (a) under “adverse effect”), then they were not required to report to the ON-MOE (para 15).

“Adverse effect” is to be interpreted broadly – it could include any “one or more” of these effects listed below. Limiting “adverse effect” to just any one effect would be contrary to the definition of “adverse effect” (which says, “one or more of”) and purpose of the ON-EPA. Previous case law have also interpreted “adverse effect” more broadly.

The purpose of the reporting requirement in s. 15(1) is to make sure that it is the ON-MOE, not the discharger, who decides if any further actions are required regarding the reported incident (para 18). As the ON-MOE is well-equipped to determine the extent of the damage and determine the harm or potential harm to the natural environment, this makes sense. This is in line with the precautionary principle (para 20).

The reporting requirements are still limited to certain events. The discharge must’ve been into the “natural environment” (ie. air, land, or water in Ontario), and in the “normal course of events” (which excludes routine activities, such as driving a car) (par 24). The discharge must also have an “adverse effect”.

The SCC points to a previous version of the ON-EPA, which contained a similar clause. Section 13 was previously challenged in Canadian Pacific for being too broad or vague, but the majority held that because s. 13 was limited to discharges of contaminants that cause (or are likely to cause) non-trivial impairments, it was neither vague or overbroad (para 28).

The effects in paragraphs (a) to (g) are supposed to capture a wide range of impacts (para 34). This is consistent with the broad protections the ON-EPA was meant to provide. Taking a restrictive approach to defining “adverse effect” would only limit these protections and the ON-MOE’s ability to respond to environmental issues.

The ultimate question was: Did [A-C]’s blast trigger s. 15? Yes.

Discharge of a contaminant (the fly-rock)

into the natural environment

out of the normal course of events (the discharge was an accident as a result of normal blasting operations – if the blast had been conducted properly, the fly-rock would not have been released like this)

which causes or is likely to cause an adverse effect (it caused injury to property (b), loss of enjoyment of that property (g), and potentially the impairment of any person’s safety (e))

that is not trivial or minimal (the force of the blast and resulting fly-rocks were powerful, causing “extensive” and “significant” property damage, including penetrating the roof and landing in the kitchen) and “seriously” damaging a vehicle – it could have easily injured or killed someone).

not otherwise required to notify the Ministry.

As a result, s. 15(1) of the ON-EPA required [A-C] to report the discharge.